Draft Opinion Calls for Reworking BIOP; Arguments Monday

by Barry Espenson
Columbia Basin Bulletin - April 18, 2003

The federal judge presiding in a lawsuit that challenges federal salmon recovery strategies in the Columbia Basin this week issued a "draft opinion" that would -- if it were his final call -- force the agencies involved to rework the plan commonly referred to as the Biological Opinion, or "BiOp."

U.S. District Court James A. Redden -- in the civil minutes to which the "preliminary draft opinion" is attached -- stressed that the document was "reflecting the court's current thinking on the summary judgment motions. It is not final."

The Portland-based judge said the draft was intended to "assist the parties in focusing on critical issues during this oral argument."

Included in the minutes sent Tuesday to the many parties to the lawsuit is a list of questions focused on the issue of whether the National Marine Fisheries Service (NOAA Fisheries) "relied on improper facts in arriving at a reasonable and prudent alternative (RPA) in its 2000 biological opinion." That BiOp says that, if the RPAs were implemented by federal action agencies and others, planned operations of the federal Columbia/Snake hydrosystem would not jeopardize the survival of salmon and steelhead listed under the Endangered Species Act.

Oral arguments scheduled Monday at the federal courthouse in Portland are confined to that assessment of NOAA Fisheries' salmon survival analysis.

The original complaint against NOAA Fisheries, filed in May 2001 by a coalition of fishing and conservation groups, claims the 2000 NMFS BiOp violates the ESA and Administrative Procedures Act by "arbitrarily, capriciously and without any rational basis concluding" that the BiOp avoided jeopardy.

The BiOp strategy has been described as an "aggressive, non-breach" approach to improving salmon survival. Most if not all of the groups signed on as defendants have pushed for the additional measures of removing four dams on the lower Snake River to ease fish passage and provide additional habitat.

The lawsuit cites "serious, substantial, and fundamental defects" in the BiOp -- saying the NMFS analysis of listed salmon and steelhead populations understates the risk of extinction and that reliance on non-hydro/non-harvest actions to avoid jeopardy are speculative and voluntary.

A July 2001 NMFS response to the complaint denied all claims.

The BiOp says that the proposed operation of federal dams and reservoirs jeopardize the continued existence of eight of the 12 ESA-listed salmon and steelhead stocks in the Columbia Basin. But the document prescribes RPA measures, within the hydrosystem as well as off-site habitat, hatchery and harvest actions, it feels can be taken to avoid jeopardy.

The plaintiff's request for summary judgment concluded that, "NMFS improperly relies on future federal actions, uncertain state and private actions, and action agency measures that are beyond their authority, unfunded, and vague to reach a no-jeopardy finding for its RPA. Contrary to basic requirements of administrative law, NMFS also fails to explain how it considered, weighed, and combined the available evidence and analyses, both favorable and unfavorable, about all of these actions to arrive at its 'ultimately qualitative' judgment that the RPA would avoid jeopardy", according to the lawsuit.

Redden, in is draft opinion, sides with the plaintiffs.

"My conclusion is that the RPA adopted by NOAA to avoid jeopardy to salmon species, both for the short-term and the long-term, fails to identify off-site mitigation measures that are reasonably certain to occur," the judge wrote.

He concluded, in the draft, that the defendant's request for summary judgment "should be granted on the issue of the 'no-jeopardy' 2000 BiOp being invalid because it relies upon a flawed RPA analysis, and in all other respects denied as moot." The plaintiffs have asked that the judge order the BiOp and its RPA, as well as and incidental take authorization, be withdrawn and that NOAA Fisheries reinitiate consultation with the federal agencies that operate the hydrosystem to draft a new plan.

Attorneys for both sides in the dispute say that the issuance of a "draft" opinion before oral arguments is unusual, though not unprecedented.

"We're not commenting on it at all," Earthjustice attorney Steve Mushuda said of the document. He and fellow Earthjustice attorney Todd True and Dan Rohlf and Aaron Courtney of the Pacific Environmental Advocacy Center are representing the plaintiffs in the case.

"It was my impression that that was not for anything other than consulting" about the case's issues, Mushuda said. The plaintiffs continue to believe the BiOp is illegal.

"That's what we'll be arguing," Mushuda said.

A federal attorney involved in the case said the minutes and draft opinion are helpful food for thought.

"It gives us an opportunity to address some of his concerns," said Fred Disheroon, U.S. Department of Justice. "We're confident he will keep an open mind." The federal agency continues to maintain that the rationale set forth in the BiOp, and the analyses supporting it, were appropriate.

"Ultimately we feel we will prevail," Disheroon said. "We feel that after full argument, the judge will see that our position is the correct one."

The plaintiffs contend that the BiOp is invalid because the federal actions contemplated as the basis for the RPA to avoid jeopardy have not undergone Section 7 consultation as required by the ESA. They also say that harvest, habitat and hatchery actions expected from state, tribal and private parties are not "reasonably certain" to occur.

Among the federal projects listed by the plaintiffs is the Interior Columbia Basin Ecosystem Management Project, which is part of NOAA's RPA justification. The ICBEMP is to guide Forest Service and Bureau of Land Management long-term management of habitat.

"However, the ICEBMP is required to but has not yet undergone section 7 consultation and, conceivably, may never be implemented," Redden said in his draft opinion. The same can be said for the Mid-Columbia Habitat Conservation Plan, Redden wrote in his draft opinion.

"Plaintiffs contend that NOAA's reliance on the uncertain and vaguely defined actions of third parties to protect and restore salmon and steelhead habitat, and hence, contribute to survival improvements necessary to avoid jeopardy, is contrary to the 'reasonably certain to occur' standard" of federal implementing statutes, Redden wrote.

The state of Oregon, which joined the case as a plaintiff intervenor also said the plan violates the ESA because proposed federal, state, and private actions "are not adequately specific, adequately funded, supported by adequate authority or adequately assured."

Lined up with NMFS as intervenor defendants are the state of Idaho, Northwest Irrigation Utilities, Public Power Council, Washington State Farm Bureau Federation, Franklin County Farm Bureau Federation, Grant County Farm Bureau Federation and Inland Ports and Navigation Group.

Plaintiffs' "Amici" are Oregon and the Umatilla, Warm Springs Tribes, Yakama and Nez Perce tribes. Defendant's Amici are the states of Montana and Washington.

The NOAA Fisheries salmon recovery efforts have been rocked in several different legal settings over the past few years. A district court ruling by Oregon Judge Michael Hogan in late 2001 said that the agency had erred when it listed only the wild portion of the Oregon coastal coho run after including hatchery produced fish in its designation of an "evolutionarily significant unit." Hogan's order to delist the coho has been stayed while the issues are debated in appeals court, but NOAA Fisheries is engaged in a re-evaluation of its hatchery listing policy and is reviewing the status of more than 20 listed West Coast salmon and steelhead ESU's that have hatchery elements.

In addition, a federal court in the District of Columbia in May of 2002 approved a settlement agreement submitted by the NOAA Fisheries that ended a lawsuit initiated by the National Association of Home Builders. In exchange for dropping the lawsuit, the NAHB got the agency to remove "critical habitat designations" from 19 West Coast salmon and steelhead populations.

The agreement approved by U.S. District Court Judge Colleen Kollar-Kotelly called for NMFS to begin working on new critical habitat designations that includes more scientific studies and an analysis of the economic impacts of those designations, as required under the federal Endangered Species Act.

The court agreed with NAHB's assertion that NMFS used flawed methods to determine the 19 salmon and steelhead populations' critical habitat.